Licence Appeal Tribunal File Number: 22-011036/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Geraldine Delembert

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR: Roderick Walker

APPEARANCES:

For the Applicant: Marc Golding, Paralegal

For the Respondent: Roger Sawh, Counsel

Heard: By Way of Written Submissions

OVERVIEW

1Geraldine Delembert, the applicant, was involved in an automobile accident on June 5, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Belair Insurance Company Inc., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1 Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and are therefore subject to treatment within the $3,500.00 (MIG) limit?

2 Is the applicant entitled to a treatment plan for $5,774.98 for psychological services from A&B Medical Assessments in treatment plan OCF-18 dated September 1, 2020, and denied on October 7, 2020?

3Is the applicant entitled to assessments proposed by A&B Medical Assessments as follows:

i. $2,200.00 for a psychological assessment dated July 17, 2020, and denied on October 7, 2020?

ii. $2,486.00 for a chronic pain assessment dated February 2, 2022, and denied on November 22, 2022?

4Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3Based on the totality of the evidence before me, I find:

1 The applicant sustained predominantly minor injuries as defined in the Schedule and thus she is subject to treatment within the monetary limits of the MIG.

2 Therefore, the application is dismissed.

ANALYSIS

Applicability of the Minor Injury Guideline

4The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 (1) of the Schedule as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and includes any clinically associated sequelae to such an injury”. The terms, “strain”, “sprain”, “subluxation” and “whiplash associated disorder” are also defined in section 3 (1). Section 18 (1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.00.

5The applicant bears the onus of establishing on the balance of probabilities her entitlement to coverage beyond the $3,500.00 cap for minor injuries. In Scarlett v. Belair Insurance, the Divisional Court found at paragraph 24 that the onus of establishing entitlement beyond the MIG limits rests with the applicant.

Position of the Parties:

6The applicant submits that she has sustained a non-minor injury based on her chronic pain and psychological injuries. The applicant submits that she currently suffers from sprains to her neck, mid and lower back and head and suffers from occipital region headaches. The applicant’s psychological impairment is that she suffers from trauma stressor disorder in a moderate range.

7The respondent referred to the case of 17-007825 v Aviva Insurance Canada, 2018 CanLII 59515 (ON LAT), where the Tribunal confirmed that chronic pain is a severe debilitating condition distinct from ongoing or recurring pain.

8The respondent submits that the applicant has suffered soft tissue injuries that would be consistent from musculoskeletal injury perspective. The applicant has suffered soft tissue injuries that would be consistent as ‘minor injuries’ as defined by the Schedule and, as such, the treatment plan for a chronic pain assessment is neither reasonable nor necessary. The respondent further submits that the applicant is not suffering from any psychological impairment that would warrant a diagnosis as per the DSM-5 because of the subject accident.

The applicant does not have a chronic pain condition that would remove her from the MIG.

9In 17-007825 v. Aviva Insurance Canada, the Tribunal listed factors necessary to establish chronic pain:

10Chronic Pain is a severe, debilitating condition distinct from ongoing or recurring pain claim of chronic pain should be assessed against six criteria described in the American Medical Associate (AMA) Guides, which state that at least three of them must be met for a diagnosis:

(1) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

(2) Excessive dependence on health care providers, spouse.

(3) Secondary physical deconditioning due to disuse and/or fear avoidance of physical activity due to pain.

(4) Withdrawal from social milieu, including work, recreation, or other social contacts.

(5) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs.

(6) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors. I find that the applicant has not persuaded me on a balance of probabilities that she suffers from chronic pain to be removed from the MIG.

11I could find no supporting evidence from a medical practitioner in the applicant’s submissions that her accident-related injuries are chronic and ongoing or that the applicant suffers from functionally disabling pain that would be sufficient to remove her from the MIG.

12The applicant is 51 years old. Her pre-accident history is unremarkable, and she did not have any pre-existing impairments. On the date of loss (June 5, 2019), the applicant visited her family doctor, Dr. Mayer Yacowar. She had a normal neurological exam. Medication was prescribed, a referral to rehab was provided, and she was directed to follow up in a week to review.

13She did not follow up in a week. The applicant’s next visit to her family doctor was almost a month later (July 3, 2019). On that occasion, she complained of a migraine headache, and the doctor’s objective findings centered on concerns about her thyroid (and not the accident).

14The applicant saw her family doctor several other times as indicated in the respondent’s brief and on February 14, 2020, eight months after the accident was her last visit to her family doctor.

15The applicant provided records from Physio Fix and Fitness. Among these records is a Patient Self-Evaluation dated August 28, 2019, that notes 80% overall improvement and 3 out of 10 on a pain intensity scale. The applicant wrote, “The program has helped me immensely. I learned exercises to do at home so that I feel back to normal.”

16A further Patient Self-Evaluation dated October 19, 2019, noted that the applicant was 100% improved and 1 out of 10 on a pain intensity scale. The applicant wrote, “The staff are all amazing, very helpful and helped me feel like I used to.”

17By the applicant’s own evaluation, she is 100% normal and at 1 out of 10 on the pain intensity scale, just over four months post-accident.

18I refer to the respondent’s submissions of the report of Dr. Chaudhry that spoke to the MIG and the Chronic Pain Assessment treatment plan in dispute. Not only did Dr. Chaudhry opine “strictly from a musculoskeletal perspective, that the claimant has suffered soft tissue injuries that would be consistent with ‘minor injuries’ as defined by SABS”, but he also found that the OCF-18 dated February 2, 2022, is “not reasonable and necessary.” Dr. Chaudhry noted that the medical materials he reviewed didn’t support an accident-related impairment of function or a level of complexity to the claimant’s medical management that would reasonably necessitate the proposed assessment. There is no clear evidence of use of prescription drugs beyond the recommended duration or abuse of or dependence on prescription drugs or other substances, excessive dependence on healthcare providers or family, or secondary physical deconditioning due to disuse or fear avoidance of physical activity due to pain. The claimant has reportedly been working from home which bodes well for her clinical and functional outcomes.

19The applicant submitted that the applicant received various treatments including psychotherapy, physiotherapy, massage therapy and chiropractic treatments in order to mitigate her injuries. The applicant submits that the respondent has unreasonably denied the applicant of these benefits by erroneously denying them under the MIG.

20I find that the totality of her injuries can be managed under the MIG because of records from Physio Fix and Fitness. Among these records is a Patient Self-Evaluation dated August 28, 2019, that notes 80% overall improvement and 3 out of 10 on a pain intensity scale, patient self-evaluation dated October 19, 2019, noted that the applicant was 100% improved and 1 out of 10 on a pain intensity scale. The applicant wrote, “The staff are all amazing, very helpful and helped me feel like I used to,” and she is 100% normal and at a 1 out of 10 on the pain intensity scale, just over four months post-accident.

The applicant does not have a psychological injury that would remove her from the MIG.

21I find that the applicant has not persuaded me on a balance of probabilities that she suffers from a psychological impairment, which would be sufficient to remove her from the MIG.

22The applicant relies on the s. 25 Psychological Assessment Report of Dr. Sharifzadeh. Notably, testing during this assessment included a Clinical Assessment of Depression (CAD), Detailed Assessment of Posttraumatic Stress (DAPS), Personality Assessment Inventory (PAI), and Survey of Pain Attitudes (SOPA) – in its absence is any testing to speak to alleged anxiety. Despite this lack of testing, Dr. Sharifzadeh goes on to comment that the applicant is “experiencing symptoms consistent with issues of a heightened state of anxiety”, and to diagnose “Other Specified Trauma and Stressor-Related Disorder Moderate Range.”

23Dr. Syed’s report addresses anxiety. It notes that a Functional Inquiry of Current Condition was done in relation of psychological complaints over the prior of two weeks, and “Ms. Delembert denied experiencing any problems with feeling overly anxious since the accident, but noted that she is claustrophobic which may increase her feelings of anxiety when she is in an elevator. She denied suffering from any panic attacks.” Further, a Beck Anxiety Inventory was done, finding anxiety to be “Minimally Elevated”. In Dr. Syed’s diagnostic commentary, she finds, “Overall, results of this evaluation indicate that Ms. Delembert in general may experience some symptoms of anxiety which are mostly situational in nature with pain being her primary limiting factor. The nature and severity of her distress is below any diagnosable threshold and considered to be subclinical.”

24Overall, Dr. Syed conducted far more testing. She found the PAI profile to be “entirely within normal limits”, Post-Traumatic Stress to be “Mildly Elevated”, the Beck Depression Inventory-II to be “Minimally Elevated”, results from the SOPA indices to generally be within normal limits, and only Moderate Risk on the Pain Catastrophizing Scale.

25Dr. Syed goes on to conclude thusly, “Integrating the subjective complaints as disclosed by Ms. Delembert, objective psychometric testing, review of the provided medical records and my clinical judgment, it is my opinion that she is not suffering from any psychological impairment that would warrant a diagnosis as per the DSM-5 as a result of the subject accident.”

26Dr. Syed also reported that the Applicant, herself, “feels she does not require psychological treatment and explained that her concerns are more physical than they are psychological. Ms. Delembert was not aware that Dr. B. Sharifzadeh (PS) had submitted two treatment plans on her behalf.”

27I prefer the respondent’s report. Dr. Syed’s testing was more comprehensive, took into consideration Dr. Sharifzadeh’s findings, and provided a more thorough analysis of the applicant’s psychological profile, including a review of her anxiety. I accept that Dr. Syed’s conclusions from a psychological perspective. The applicant can be treated within the MIG, and the disputed treatment and assessment plans are not payable.

None of the treatment plans and assessments are payable.

28As I have determined that the applicant is subject to treatment within the monetary limits of the MIG and that the parties have agreed that the MIG limits have been exhausted, there is no need to assess the reasonable and necessary nature of the treatment and assessment plans as no funding for any of them would be available.

No interest is payable.

29As no benefits are overdue, no interest is payable.

ORDER

30As a result of the above and on a balance of probabilities I find that:

1 The applicant sustained predominantly minor injuries as defined in the Schedule and is therefore subject to treatment within the monetary limits of the MIG.

2 The applicant is subject to treatment within the monetary limits of the MIG. Because the parties have agreed that the MIG limits have been exhausted the applicant is not entitled to any of the disputed treatment and assessment plans.

3 As there are no overdue benefits payments, the applicant is not entitled to interest.